ISIYOK v. TURKEY



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 22309/93

                 Ahmet, Ahmet and Bedri isiyok

                            against

                            Turkey

                   REPORT OF THE COMMISSION

                 (adopted on 31 October 1997)

                       TABLE OF CONTENTS

                                                          Page

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1

PART I  : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3

PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .4

                         INTRODUCTION

1.   This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Ahmet (son of Mehmet), Ahmet (son

of Sabri) and Bedri isiyok against Turkey on 9 July 1993.  It was

registered on 23 July 1993 under file No. 22309/93.

2.   The applicants were represented by Prof. Kevin Boyle and

Ms. Françoise Hampson, both teachers at the University of Essex.

3.   The Government of Turkey were represented by their Agent,

Prof. Dr A. Gündüz.

4.   On 3 April 1995 the Commission declared the application

admissible to the extent that it related to the deprivation and

endangering of life, the denial of access to court, the failure to

initiate proceedings before a tribunal and the destruction of the

applicants' homes. It then proceeded to carry out its task under

Article 28 para. 1 of the Convention which provides as follows:

     "In the event of the Commission accepting a petition referred to

     it:

     a.   it shall, with a view to ascertaining the facts, undertake

     together with the representatives of the parties an examination

     of the petition and, if need be, an investigation, for the

     effective conduct of which the States concerned shall furnish all

     necessary facilities, after an exchange of views with the

     Commission;

     b.   it shall at the same time place itself at the disposal of

     the parties concerned with a view to securing a friendly

     settlement of the matter on the basis of respect for Human Rights

     as defined in this Convention."

5.   The Commission found that the parties had reached a friendly

settlement of the case and on 31 October 1997 it adopted this Report,

which, in accordance with Article 28 para. 2 of the Convention, is

confined to a brief statement of the facts and of the solution reached.

6.   The following members were present when the Report was adopted:

          Mr.  S. TRECHSEL, President

          Mrs. G.H. THUNE

          Mrs. J. LIDDY

          MM.  E. BUSUTTIL

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H. DANELIUS

               F. MARTINEZ

               C.L. ROZAKIS

               L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               B. MARXER

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

               E. BIELIUNAS

               E.A. ALKEMA

               M. VILA AMIGÓ

          Mrs. M. HION

          MM.  R. NICOLINI

               A. ARABADJIEV

                            PART I

                    STATEMENT OF THE FACTS

7.   The applicants, Turkish nationals, of Kurdish origin, are members

of the same family living in the Diyarbakir province in south-eastern

Turkey. The first two applicants are cousins and the third applicant

is the nephew of the first applicant. They were born in 1950, 1951

and 1974 respectively.

8.   The facts of the present case are in dispute.

9.   The applicants recounted the following version of the events in

question:

10.  On 12 January 1993 the applicants' hamlet of Çekirdek in the Kulp

district of Diyarbakir province was bombed from 9.00 to 11.00 hours by

three military helicopters. At around 12.30 hours, one of the

helicopters was seen again, followed by two jets. At this point, the

first applicant took his four children into a corner of the house and

was about to go and check the animals in their fold. Before he could

go outside, there was a great explosion and his home collapsed.

11.  As a result of the bombing, the first applicant had his ribs

broken and was bruised. His family home was destroyed, the family's

animals were killed and the feedstock for the animals was destroyed by

burning. The second applicant's family home was also destroyed and the

family's animals killed. The parents of the third applicant and three

of his siblings were killed in the bombing, their family home was

destroyed and the family's animals were killed.

12.  The applicants alleged that the State authorities were

responsible for the bombing and, moreover, did not investigate the

event in an adequate manner.  They invoked Articles 2, 3, 5, 6, 8, 13,

14 and 18 of the Convention, as well as Article 1 of Protocol No. 1.

13.  The Government submitted that when security purposes demanded

this, security forces would carry out operations in the regions where

PKK terrorists were active. As these security forces were given strict

instructions to avoid causing damage to inhabitants of the areas in

question, it was inconceivable that air attacks were directed against

the civilian population. In any event, the allegation that Çekirdek

hamlet was bombed by security forces was implausible as there was no

concrete evidence supporting it.

14.  An investigation into the alleged event is currently pending

before the Kulp District Administrative Board following a decision of

non-jurisdiction by the public prosecutor of Kulp.

                            PART II

                       SOLUTION REACHED

15.  Following the decision on the admissibility of the application

and a hearing of evidence before Delegates which took place in Ankara

on 15 April 1996, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

16.  In accordance with the usual practice, the Secretary, acting on

the Commission's instructions, contacted the parties to explore the

possibilities of reaching a friendly settlement.

17.  Following an exchange of correspondence, the Commission

considered the question of a settlement on 1 March 1997, and made

specific settlement proposals. By letter of 5 May 1997 the Government

informed the Commission that they were willing to accept the terms of

the proposal. By letter received on 26 June 1997 the applicants

informed the Commission that they also agreed to a settlement of the

case on the proposed terms, subject to a number of conditions

concerning the execution of the settlement.

18.  On 28 August 1997 the Commission sent the parties a draft

protocol for settlement. Following an exchange of correspondence, in

the course of which a number of small amendments were made to the draft

protocol, the parties signed the following Agreement on

21 October 1997:

     (1)  the Government will pay to the applicant Bedri isiyok the

          equivalent of 100,000 French francs, and to each of the two

          applicants called Ahmet isiyok the equivalent of 80,000

          French francs, within three months from the day when the

          Commission approves the friendly settlement, it being

          understood that the sums are to be paid net of any direct

          or indirect tax charge or other deductions and in Turkish

          Lira at the international exchange rate in force on the

          date of payment;

     (2)  the Government will forward to the Commission a copy of the

          transfer of the sums under (1), which will be transmitted

          to the applicants' legal representatives;

     (3)  the Government will pay directly to the applicants'

          representatives in the United Kingdom, within three months

          from the day when the Commission approves the friendly

          settlement, the legal costs incurred by the applicants in

          the proceedings before the Commission amounting to

          8,123.04 Pounds Sterling, this being the total sum of legal

          costs of 8,877.50 Pounds Sterling, minus 754.46 Pounds

          Sterling received by way of legal aid from the Commission;

     (4)  simple interest at the following annual rates shall be

          payable for each day beyond the expiry of the three month

          periods mentioned above until payment has been made:

          (a)  3.87% in relation to the sum payable to the

               applicants, this being the current French default

               interest rate, and

          (b)  8% in relation to the sum payable in Pounds Sterling,

               this being the current British default interest rate;

     (5)  the applicants declare that with this settlement the

          proceedings before the Commission in the present

          application have terminated.

19.  At its session on 31 October 1997, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

20.  For these reasons, the Commission adopted the present Report.

        M. de SALVIA                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

 

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